Nos. 03-3724/3725 UNITED STATES OF AMERICA v. Adrian Ramirez-Elias

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 03-3724/3725
UNITED STATES OF AMERICA
v.
ADRIAN RAMIREZ-ELIAS,
Appellant (No. 03-3724)
UNITED STATES OF AMERICA
v.
MANUEL RAMIREZ-MEZA,
Appellant (No. 03-3725)
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF PENNSYLVANIA
(Dist Court Nos. 02-CR-173-06 and 02-CR-173-04)
District Court Judge: Hon. Bruce W. Kaufman
Submitted Under Third Circuit LAR 34.1(a)
September 15, 2004
Before: ALITO, AMBRO, and FISHER, Circuit Judges.

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We see no conflict between Kelly and United States v. Barbosa, 271 F.3d 4381
(3d Cir. 2001), or any other decision of our Court cited by Ramirez-Elias.
(Opinion Filed: April 18, 2005)
OPINION OF THE COURT
PER CURIAM:
This is a direct appeal in a criminal case. Adrian Ramirez-Elias pled guilty to two
counts involving a conspiracy to possess and distribute over 1,000 kilograms of marijuana
and was sentenced to the mandatory minimum sentence of 10 years for each crime.
Prior to sentencing, Ramirez-Elias argued that the penalty provision of the statute
under which he was to be sentenced, 21 U.S.C. § 841(b)(1)(A), was unconstitutional
under Apprendi v. New Jersey, 530 U.S. 466 (2000), because the statute requires a judge
to determine the amount of narcotics in question, whereas Apprendi states a constitutional
requirement that the jury determine this amount. Our opinion in United States v. Kelly,
272 F.3d 622 (3d Cir. 2001), has foreclosed this argument in this Circuit. See also1
United States v. Pray, 373 F.3d 358, 360 n.1 (3d Cir. 2004); United States v. Chorin, 322
F.3d 274, 282 fn. 4 (3d Cir. 2003). The Supreme Court’s recent decision in United States
v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005), does not change this result. See, e.g.,
United States v. Collins, 2005 WL 476912 (4th Cir. Mar. 02, 2005) (reaffirming post-
Booker that § 841 is constitutional under Apprendi).

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Ramirez-Elias was sentenced pursuant to the United States Sentencing Guidelines.
Having determined that issues with respect to Booker are best determined by the District
Court in the first instance, we vacate the sentence and remand for resentencing in
accordance with that opinion.

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